Verizon announced yesterday that they would appeal the FCC’s Net Neutrality ruling before the DC Circuit Court of Appeals.  Nate Anderson of ArsTechnica wondered why Verizon is suing over a ruling that is so similar to a joint Verizon-Google proposal 5 months ago and listed all the similarities and he essentially accused them of being a bunch of criminal outlaw babies crying to their mommy by using a large version of the image to the right.  That might be cute, but it ignores the realities of how our government works.

While there are similarities between the FCC and Verizon-Google proposal, there are significant differences that Anderson neglected to mention like the incoherence of the FCC’s rules against paid prioritization.  The FCC made paid prioritization legal under some names but illegal under most with no rational justification.  But that’s not the main reason Verizon is taking this to court.  It’s because the Verizon-Google proposal asked the Congress to act and not the FCC, and Anderson even acknowledged this when he wrote:

“The similarity here is astonishing, though the Verizon/Google proposal did make one other suggestion: it should be passed by Congress, not the FCC, and the FCC should not have “rulemaking authority” over nondiscrimination requirements and consumer protections. In other words, the FCC could have a bit of enforcement power, but it would be forbidden from writing key new regulations that might alter or expand its power over networks.  And that was apparently enough to set Verizon off.”

What’s the problem here?  Why is Verizon being portrayed as an outlaw infantile because they expect the FCC to abide by the law and operate within the congressional tether?  The FCC is never allowed to alter or expand its own powers without explicit statutory authority granted by Congress.  Every time the FCC tried to do that in the past, the courts have struck them down without exception.  Even when there were supporting congressional policy statements that supported the FCC’s actions, the courts still required statutory justifications and not mere statements of policy.  In this instance where there is clear majority congressional opposition to the FCC’s Net Neutrality ruling much less granted statutory authority, it looks even worse before the courts.